C-123 medium
assault transports used for spraying Agent Orange during the Vietnam War remained
contaminated with TCDD (dioxin) until their destruction as toxic waste in 2010. Veterans
(aircrew, maintenance and aerial port) assigned to these aircraft need military
herbicide exposure medical care and disability benefits from the Veterans Administration.

Summary: USAF C-123 veterans flew the C-123 transport aircraft following use in Vietnam spraying
Agent Orange. The contamination became identified in 1994 but was not shared
with veterans for decades. Veterans became aware of the tests confirming C-123
contamination in May 2011 and sought VA service connection. VA opposes on the basis
of “secondary
exposure”
and creating concept of “dry
dioxin”
to suggest not “enough” exposure to warrant benefits. Veterans
oppose with a large amount of evidence from other federal agencies,
universities, physicians and scientists.

2.
Background: After Vietnam C-123s returned to US. Spray apparatus was removed and
airplanes then flew traditional cargo and aeromedical missions until 1982 retirement.
42% of fleet sprayed AO.

3.
USAF records released in 2011 proved the C-123s had remained contaminated by military herbicides after Vietnam.
AF toxicologists first officially confirmed contamination by military herbicide
residue in 1979 following complaints from our maintenance personnel. The
problem was better revealed with far more extensive official testing in 1994 in
which toxicologists confirmed our airplanes were “heavily contaminated” and “a danger to public health.” The contamination was not
theoretical, but confirmed many times by Air Force military and civilian
toxicologists, and by contract laboratories, and also described in sworn testimony
by the 1994 testing experts in federal court. In 2010, the C-123s, still judged
too contaminated for landfill, were all destroyed as toxic waste, other than a few scattered in aviation museums.

Yale Law School conducted an extensive research project and concluded the C-123 veterans are fully entitled to presumptive service connection for Agent Orange exposure. The Journal of Environmental Research published "Post-Vietnam Military Herbicide Exposures by UC-123 Agent Orange Spray Aircraft" establishing the significant exposure to TCDD experienced by C-123 crews and maintenance personnel.

5.
In 1996, the USAF Office of Environmental Law directed all contamination information
“be kept in official channels only.” Contaminated aircraft had accidentally
been sold to Walt Disney Films and to foreign governments and AO toxicity
became potentially embarrassing. USAF directed HAZMAT quarantine of remaining
C-123s in a special fenced, restricted area of Davis-Monthan AFB until 2010
destruction of all airplanes as toxic waste. This secrecy decision cost
veterans decades of lost time addressing their exposures.

6.
Affected veterans eventually began to approach the Department of Veterans
Affairs claiming exposure to military herbicides and were immediately advised
that no exposure was possible. We have been assured by the VA that no exposure
occurred during the full decade we flew the C-123, with hundreds of hours
aloft, hundreds of hours on the ground, hours spent cleaning, scraping,
grinding, repairing, sleeping aboard during tactical deployments, trying to
tolerate stench inside the airplanes and also to fly our assigned missions
throughout the Western Hemisphere and Europe. On 1 June 2011 Headquarters, Air
Force Reserve Command confirmed “The
C-123 aircraft in the 731st TAS fleet had been used to disperse chemical
defoliants over Southeast Asia during the Vietnam War.”

7.
VA advanced an illogical position labeled “unscientific” by Dr. Jeanne Stellman and others.
VA says that the dermal barrier is a near-perfect barrier preventing “dry dioxin transfer.” We learned from IOM and other
reports that much occupational exposure to dioxin is via the dermal route. The
VA’s
slant has been described as “unscientific” by other toxicologists, ten of whom
joined with five physicians in forwarding their challenge to the Secretary of
Veterans Affairs on 29 November 2012. Expert scientists and physicians who
concluded our C-123 crews were exposed and need dioxin exposure care.

8.
Dr. Tom Sinks, Deputy Director of the Agency for Toxic Substances and Disease
Registry, evaluated our situation and stated, “I
believe aircrews operating in this, and similar, environments were exposed to
TCDD.” Drs. Schecter and Stellman differ
only in the degree of exposure our crews experienced, with Stellman saying it
was more than Vietnam ground soldiers and Schecter saying exposure was about
the same as the troops. Subsequently, Dr. Sinks' finding was affirmed by Dr. Christopher Portier, Director ATSDR and then by Rear Admiral R. Ikeda, Acting Director.

9.
Dr. Linda Birnbaum, Director of the National Institute of Environmental Health
Sciences and also Director of the NIH National Toxicology Program, determined “exposure
is assumed based on wipe-tests demonstrating high dioxin concentrations in the
C-123K’s.”
VA ignores other agencies resulting in the juxtaposition with one agency (VA) making
a ruling that veterans’
exposure was “unlikely” and others agencies (CDC, NIH, EPA)
with specific authority for determining that C-123 veterans were exposed.

10. Legal
basis:VA promulgated its herbicide
presumption in 2001 and the issue of herbicide exposure outside Vietnam was addressed. 66
Fed. Reg. 23166 (May 8, 2001). VA explained for non-Vietnam veterans exposed
to an herbicide agent defined in 38 C.F.R. 3.307(a)(6) during active military service and with diseases on the list
of presumptive service connection (which includes diabetes mellitus type II and
ischemic heart disease), VA will presume that the diseases are due to the
exposure. 66 Fed. Reg. 23166; 38 C.F.R. 3.309(e).“ While required to adhere to the
1991 law as well as C.F.R.s, the VA
doesn’t and disregards numerous disinterested proofs of C-123 veterans’
herbicide exposure. Rivera v. Shinseki
requires VA to “sympathetically” weigh veterans’ evidence, but in LtCol
Bailey’s case, every effort was made to prevent any merit being granted
his large body of compelling and supporting evidence.

Unable to dispute the contamination, VA has oped to "explain" how the contamination could not have exposed the veterans. Parsing the word "exposure" has included the VA even redefining it but adding the requirement of bioavailability for exposure to have occurred. Scientists explain to the C-123 veterans that is simply wrong - "putting the cart before the horse" is a perfect

analogy. VA's Office of General Counsel has announced VA's ability to redefine "exposure" for VA's own purposes: In this case, that means redefining exposure to prevent exposure claims.

Thus far, all C-123 veterans’ claims are denied in
regional offices but have eventually been reversed and granted upon appeal to Board of
Veterans Appeals, but such decisions carry no precedent and can take five years
to be heard. Most C-123 veterans are too old, too ill to waste five more years
on top of the two years or more needed for the basic claim to be heard and
denied for submission to the BVA for correction.